The Mental Capacity Act Flashcards
What is stage 1 of the two stage test?
Is there is impairment or disturbance in the functioning of the person’s mind or brain?
What happens if the answer to stage 1 is yes?
The person’s ability to make the decision at hand should be tested to establish whether the impairment or disturbance is sufficient to undermine the person’s capacity to make that particular decision.
What is stage 2 of the two stage test?
- Is the person able to understand the information relevant to the decision?
- Are they able to retain the information relevant to the decision?
- Are they able to use or weigh the information to reach a decision?
- Are they able to communicate the decision by any means?
A negative answer to any is failure of the test.
If the patient has been judged to lack capacity who decides for them?
There is legal permission for a doctor to make decisions on their behalf, but a legal duty to make decisions that are in the best interests of the patient.
Someone with a lasting power of attorney may also make decisions on the patient’s behalf.
Who does not automatically have the right to make decisions for the patient who lacks capacity?
Close friends or relatives
When should capacity be assessed?
Before carrying out any care or treatment - the more serious the decision the more formal the assessment should be.
What is capacity specific to?
Time and decision - a person can have the capacity to make one decision but not another, or capacity to make a decision at one time or not another.
What sort of condition might cause capacity to be variable?
High fever
What sort of condition would cause a person to permanently lack capacity?
Persistent vegetative state
What sort of condition may cause someone to have the capacity to make certain decisions but not others?
Dementia
‘Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests’
What is the exception to this statement?
If a valid and applicable advance decision to refuse treatment is available. This directive must be followed whether or not it is considered to be in the best interests of the patients.
According to the MCA, what criteria must be fulfilled when assessing a persons’ best interests?
a) The persons’ past and present wishes and feelings (and in particular, any relevant written statement made by them when they have capacity).
b) The beliefs and values that would be likely to influence his decision if he had capacity, and
c) The other factors that he would be likely to consider if he were able to do so.
You should also
- encourage participation
- avoid discrimination
- assess whether the person will regain capacity
- consult other people (close friends, carers, family, LPAs etc)
Why is a best interests judgement not a ‘substitute judgement’?
It is not an attempt to determine what the person would have decided if they were able. Rather it is an objective test of what is in the person’s actual best interests. However while you are not legally bound to do what the person may or would have wanted, their views and wishes are of great significance.
What is important about the information relevant to the decision?
- It must be given in a way that is appropriate to the person’s circumstances.
- It also must include information about the reasonably foreseeable consequences of deciding one way or another or failing to make the decision.
What is the least restrictive option?
The option that interferes the least with a person’s rights or freedoms of actions, or whether there is any need to decide or act at all.
Give an example where the least restrictive option may not be in the best interests of the person in question?
A person is unconscious following a severe RTC and a decision regarding the amputation of a limb needs to be taken. It may be possible to delay amputation until the person recovers consciousness (least restrictive) but if the person is trapped and cannot be freed to have other medical treatment then it may be in their best interests to amputate.
What is a Lasting Power of Attorney (LPA)?
The MCA allows a person of 18 years or over to choose someone (also over 18) they trust to make decisions on their behalf if, sometime in the future, they loose capacity or do not wish to make those decisions for themselves
What are the two types of LPA?
- Property and financial affairs LPA.
2. Health and welfare LPA
What is a property and financial affairs LPA?
Allows a person to appoint someone to manage their finances and property.
What is health and welfare LPA?
This allows a person to appoint someone to make decisions on their behalf about their health and welfare when they loose capacity.
Does a health and welfare LPA automatically have the right to make decisions about life-sustaining treatment?
No - not unless this is explicitly stated in the document conferring power of attorney.
What was the case of Re C?
- 68yo man with paranoid schizophrenia, had been in Broadmoor for 30y
- Developed a gangrenous foot
- Surgeon’s believed that had only 15% chance of survival without amputation
- C had gradiose delusions that he had an international career in medicine and had never lost a patient
- He also had complete faith that he could survive his present trials aided by God, the nurses and doctors.
- He said he would rather die with two feet than live with one
What was the judgment in Re C?
- C’s solicitor was granted a declaration that no amputation should take place without C’s written consent.
- Justice Thorpe: Although his general capacity is impaired by schizophrenia…I am satisfied that he has understood and retained the relevant treatment information, that in his own way believes it and that in the same fashion has arrived at a clear choice.
What happened to C?
He did not have his leg amputated and he did not survive.
What issue about belief arises from this case?
- While C believed that the doctors believed that he would die without the amputation, it’s not clear that he believed that himself.
- If a decision appears eccentric or unwise, it does not follow that the person did not believe the information given.
Why was C judged to have the capacity to make this decision?
- He was able to understand and retain the information given to him
- He understood the possible consequences of his decision
What is an advance decision?
A decision a person may make in advance to refuse treatment, even if it results in their death, should they lack capacity at some point in the future.
How old does a person have to be to make an advance decision?
18
What treatment cannot be refused with an advance decision?
Those that are required to keep a person comfortable (basic care) e.g. warmth, shelter and offering food or water by mouth
What treatment can be refused with an advance decision?
Almost any treatment including artificial nutrition and hydration.
What legal weight does an advance decision hold?
The same as a decision made by a competent person - best interests do not apply.
What would be the likely consequences of violating an advance decision?
- Claims for battery
- Criminal charges for assault
Is it necessary for advance decisions to be in writing?
No
What should be done in the case of a verbally expressed advance decision?
It must be recorded in the patients notes (the exception to this is in the case of life-sustaining treatment).
What should be done in the case of an advance decision relating to the refusal of life-sustaining treatment expressed verbally?
It must be written and signed by the person and a witness, and include a statement that the decision is to apply even if the person’s life is at risk.
Is proof of capacity required to make an advanced decision?
No - the MCA creates a presumption of capacity.
What conditions may render an advance decision invalid?
If the person:
- Withdrew it prior to loosing capacity. This withdrawal does not need to be in writing
- Appointed someone with a health and welfare LPA to give or refuse consent to the treatment to which the advance decision relates AFTER writing the advance decision
- Has made expressions inconsistent with the advance decision (e.g. has an advanced decision to refuse blood transfusions but has now lost their faith).
What are the circumstances under which an advance decision is not applicable?
- The person regains capacity
- Any circumstances specified in the advance decision are absent
- There are reasonable grounds for believing that circumstances exist which the person did not anticipate at the time the advance decision was drawn up and which would have affected their decision had they known of those circumstances.
What must healthcare professionals consider when deciding if an advance decision is still applicable?
- How long ago it was made
- Whether there have been changes in the patient’s personal life (e.g. pregnancy) that might affect the validity
- Whether there have been developments in medical treatment that the person did not forsee
(MCA code of practice)
What happens when there is a doubt about the validity or applicability of an advance decision?
An application may be made to the court for a ruling.
What happens if the court decides the decision is valid and applicable?
It cannot be overruled
What can a doctor do while awaiting a ruling?
Treat to maintain life or prevent deterioration.
What have the courts tended to do in the past?
To favour treatment to preserve life if there is any doubt about the validity or applicability of an advance decision.
Can a doctor be prosecuted for treating whilst not knowing an advance decision was in place?
No
Can a doctor be prosecuted for providing said treatment if an advance decision has been found to be invalid or not applicable?
No - though they must still take it into account.
If an advance decision has been found to be valid and applicable must a doctor comply, even in the face of opposition from the family?
Yes - non-compliance is an offence under the MCA
What are the only circumstances under which a doctor does not have to comply with a valid and applicable advance decision?
- If the doctor has a conscientious objection to withholding life-sustaining treatment.
- They should make this known and withdraw themselves from the patient’s care, making arrangements for another doctor to take over their role.
- If this is not possible they must comply
